Gitlow v. New York (1925)

Gitlow v. New York Led to a Ruling that Congress Shall Make No Law…Abridging the Freedom of Speech Including State Governments

Are U.S. states prevented by the First Amendment from punishing
political speech that directly advocates the government’s violent overthrow?

The Background for Gitlow v. New York

On September 6, 1901, President William McKinley was meeting the
public on the steps of the Temple of Music in Buffalo, New York. Leon Czolgosz,
an anarchist, made his way to the front of the line and assassinated the 25th
President of the United States. New York promptly passed the Criminal Anarchy Law
of 1902. Following the Bolshevik Revolution, Benjamin Gitlow published the Left
Wing Manifesto in 1919 in The Revolutionary Age. The Manifesto
called for the establishment of socialism via strikes and class action of any
form. Gitlow is then quickly charged with criminal anarchy under New York’s
aforementioned Criminal Anarchy Law of 1902.

The Defense

Gitlow’s defense argued that the Left Wing Manifesto was
mere historical analysis rather than an advocacy for violence, and that since
there was no subsequent violence flowing from the manifesto’s publication, the
statute penalized any words without predisposition to the incitement of
tangible action. The defense failed and Gitlow was sentenced for 5 to 10 years
in prison. Gitlow served over two years in Sing Sing before an appeal was
granted and he was released on bail. New York’s State Courts did not overturn
Gitlow’s conviction. The case was eventually heard before the U.S. Supreme
Court and Oral arguments before the Supreme Court took place in April and
November 1923.

Sanford’s Opinion

Justice Edward T. Sanford wrote the majority
opinion which upheld Gitlow’s conviction. By doing so, the ruling hence expanded free speech
protections for individuals as the court held that the First Amendment was applicable to state governments via the due
process clause of the Fourteenth Amendment.

The majority opinion stated that the court assume[s] that freedom of speech and of the press which are protected by the
First Amendment from abridgment by Congress are among the fundamental personal
rights and ‘liberties’ protected by the due process clause of the Fourteenth
Amendment from impairment by the States.

New York’s Criminal Anarchy Law of 1902 was
deemed constitutional as the state cannot reasonably be
required to defer the adoption of measures for its own peace and safety until
the revolutionary utterances lead to actual disturbances of the public peace or
imminent and immediate danger of its own destruction;
but it may, in the exercise of its judgment, suppress the threatened danger in
its incipiency.”

The Court, citing Schenck and Abrams, maintained
that, despite the small scale of Gitlow’s actions the government could punish
speech that threatens its basic existence because of the national security
implications.

The Enduring Legacy Regarding Free Speech

The U.S. Supreme Court ruled on June 8, 1925 that the federal Congress shall make no law…abridging the freedom of speech, which
also applied to state governments. This allowed restrictions on speech that
merely advocated potential violence, but was later dismissed by the Supreme
Court in the 1930s and eventually the court became tighter regarding the kinds
of speech that government could permissibly suppress.